Plain view is killing the Fourth Amendment. Because our plain-view case law is so favorable to the police, they have a strong incentive to maneuver into a position where they can find things in plain view, or close enough to lie about it.

... There was absolutely no reason for the detectives to enter [Lemus's house] except to try to find contraband in "plain view." So, the detectives went in and, while there, Diaz thought he saw "something sticking out from the couch" that "looked like the butt of a weapon." Longoria then lifted the couch cushion "to make sure" and found a gun. Under what theory of "plain view" may police lift cushions off a couch to make sure something is contraband? Why weren't the officers required to get a warrant — if they could — based on what they saw, before rummaging through the couch?

Hurray! It's freedoms day. First freedom of political speech, and now freedom from being searched by the police as a trophy sport. These are the same police that keep the loot if they find any drugs, or even if they merely find cash money on a politically weak person. That is a morality tale for the coming attacks by the Police Man and the Tax Man in the brave new world of the Obama/Soros government trying to criminalise living or using money without its permission.

And why, pray tell, is the conservative political establishment not furious and gnashing its teeth at violations of personal liberties like in this case?

Why has that ground been ceded to libertarians – who are then derided by the conservative establishment as Ron Paul was in 2008 – and the occasional liberal?

I'll tell you why:

Because the conservative political establishment has been bought off by police unions and "law enforcement" business interests. And, in general, the conservatives are more concerned about their public image and the daily political scorecard. Institutionalized corruption and small-thinking are to blame; the conservative establishment will continue to ignore issues of personal liberty as long as these traits continue to define them.

The only case I can think of in recent memory that has been addressed by the conservative establishment is Kelo. And it seems that case was picked up only after a loud grass-roots public outcry could be heard.

@JRH - Why go with the conspiracy theories? The amount of police power that should be granted to the state is an area of genuine principled disagreement between conservatives and libertarians. In fact, if the state confined itself to protecting us from genuine common law crimes like theft, rape, and murder I wouldn't be surprised if libertarians wouldn't be less skeptical of police power. However, since the state seems to want to control our every action, I'm with Kozinski et. al.

@Bob_R: I mention what I did because I think Kozinski was directing his comments toward a wider audience – like what happened with Kelo. Thrust it into the political arena, in other words. But that's not going to happen unless established politicians are willing to stand up for personal rights.

Either that, or Kozinski wanted to urge the SCOTUS to take up the issue (if not the case). If this was his intention, a little political stirring can only help.

I completely agree with Kozinski. I only wish the political establishment would also demonstrate more support for personal rights in their legislative domain.

Some highly salient points in the cops favor that were left out of the post:"Juan Lemus was in his yard... when two officers pulled up to arrest him."

"Lemus was trying to walk into his living room when the officers handcuffed him in his doorway."

"A three-judge panel of the 9th Circuit ruled that the officers could enter and search the home without suspicion, because they 'claimed' they could see a gun in plain view on Lemus' couch."

The gun was found in couch cushions.

OK first, the word 'claimed' posits that the arresting officers might be lying. Maybe they were but if so, the judge needs to at least mention what circumstances leads him to entertain that possibility. He didn't and even cops deserve the presumption of innocence, don't they?

BTW, Hollywood movies don't apply as presumptive evidence that most cops are corrupt.

Just common sense tells us that the arresting officers must have told Lemus to stop as he walked toward his house, by continuing to walk, he defied a lawful order.

Plus, he opened the door. As he was in his doorway when the cops reached him and handcuffed him. That means the cops could see clearly into the living room.

Come on people, cops know what the butt of a gun looks like.

If there was nothing in view, why would they assume that Lemus might have 'contraband' in the cushions of his couch? Which he in fact did.

They didn't tear the house apart, they went directly to where the gun was hidden. So, either they're telling the truth or it was a plant.

Yet Lumus isn't claiming that he saw the cops plant the gun just a few feet from where he was standing and Judge Kozinski mentions no other circumstantial evidence that would lead to even a suspicion that the cops planted the gun. Plus if they did, why wouldn't Lumus state that not to be his gun...

The cops are there to arrest him, that alone is grounds for cops to be suspicious and to suspect that Lumus might be guilty of other criminal activity. If seeing what looks to be part of a weapon it's grounds for probable cause, what is?

Naturally the cops responded when they saw part of what might be a weapon.

They were doing their jobs.

And that is why conservatives tend to back the cops, because liberals clearly presume that the cops are storm troopers and the criminal the victim.

So, when they arrest Lemus on his doorstep his door is open and they see a gun sticking out of the couch cushions. Lemus is known to carry weapons and is known to have participated in a drive-by shooting. I don't see the problem with officers entering to investigate the weapon. Seems like an excellent opportunity to get another (likely) stolen weapon off the streets. Should they have just left it lying there? At the very least, leaving a weapon out unsecured in a home is very poor gun safety. Were there children in the home?

The cops saw nothing from the doorway. After the arrest, the cops went through the apartment on the off-chance the solitary Lemus had someone there. Then the detectives went through the apartment, where one found a gun in the sofa cushions in the living room:

@Geofrrey Britain...I like your optimism In my experience the police are a group that has developed its own standards of how to treat other groups...One treatment for politically connected friends of the local authorities, and another treatment for the down and outers. Then inside the group there are the men with a sense of playing fair, and always do so. But there are also the men with a sense they should play unfair, and always do so. The good develops under a good leadership at the top, and the bad develops under a bad leadership at the top. That's why the courts hear these cases and seldom presume that the police are playing things straight.

Heh. Last semester, in a freshman writing course, I used that cliche as an example of the weakness of appeals to emotions in rhetoric. I think I must have been a bit emphatic about it, because later, in a departmental exam - i.e., read by my colleagues as part of a proficiency evaluation - one student developed that example in a topic on free speech and proposed internet restrictions. He ended his essay with a flourish: "Fuck the children!"

It didn't go over well, but fortunately I was able to defend his passing grade based on his having a good portfolio. I took responsibility for his excess, but you know, he was right.

I took the time to read the pdf doc of Judge Kozinski's dissent. What a mess in reason and logic. The Judge's clear bias is preventing him from engaging in any clear reasoning.

First, he says that the detectives arrested Lumus just within the doorway entrance to the apt, which directly enters the living room.

Then Kozinski ignores that apt.'s layout and claims that they checked other rooms before they could arrive in the living room.

He also presumes that in the physical act of arresting Lumus none of the detectives were within the apt. Nothing within the dissent indicates any basis for making that claim beyond subjective presumption.

That bias is evidenced by Kozinski's characterization of the detectives, "So, the detectives went in and, while there, Diaz thought (either he did or he didn't, the gun wasn't moving) he saw “something sticking out from the couch” that “looked like the butt of a weapon.” Lemus, 582 F.3d at 960. Longoria then lifted the couch cushion “to make sure” and found a gun. Id. at 961. Under what theory of “plain view” may police lift cushions off a couch to make sure something is contraband? Why weren’t the officers required to get a warrant—if they could—based on what they saw, before rummaging through the couch? "

"Under what theory"? Under the, "I know a gun butt when I see one" Judge, that theory.

They went there to arrest Lumas, he's a gang-banger, seeing a gun butt sticking out of some couch cushions is probable cause for lifting the cushions... unless you're in willful denial and believe that the police are a greater threat than the Lumas' of the world.

This 'judge' is a disgrace, an ivory tower academic and lacks the common sense of your plumber.

The only excuse for the police to enter the apartment was to look for human beings. Human beings cannot fit under a couch cushion -- common sense. Further, common sense tells us that people -- yes, even our friends Mr. Policemen --tend to adjust their stories to put themselves in the best light. Common sense also tells us that people put guns under couch cushions because they intend to conceal them. Therefore they check to make sure they did a good job.

Despite appearances, I'm no more enamored with the police than you are and fully agree and recognize that the ethics of the police exactly mirror the spectrum of probity within our society.

Certainly that should lead any competent judge to be sensitive to any clear indications of police bias or illegal behavior.

However, nothing Kozinski states in his dissent indicates any evidence beyond subjective presumption that the cops did not follow the 'rules'. He then confuses and even makes up stuff as he goes along in his dissent to butress his position.

The cops weren't out of line, Kozinski is allowing liberal bias, of the criminal as victim, to interfere with the cops trying to do their job.

The protective sweep doctrine applies to arrests within the home, for officer protection against people lurking in adjacent rooms. Here the officers were outside the home when they arrested Mr. Lemus, so the protective sweep argument fails, because the sweep put them in danger if anything. Once the officers had determined no one was lurking within, there was no excuse to call the detectives in for them to take a look. Moreover, looking for anything smaller than a human being was outside the scope of the protective sweep.